John Murtha

Memorandum

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To :Director

From :Legal Counse

Date 2/3/82

Subject': AB S CAM

Exec AD Inv. _
Exec AD Adm.
Exec AD LES .
Asst, 'Dir.:
iSTdm^Servs. _

Crim; lifv.^JL

Ident.

Intel I .
Loborotq

Rec . Mgnt. _
Tech. Servs.
Training

Public Afls. OH. _

Telephone Rm.

Director's Sec’y _

PURPOSE : To provide the opinion of Legal Counsel Division

(LCD) on the question of whether a Congressman who
turns down a bribe offer violates any law by failing to
report the offer.

RECOMMENDATION : None, for information only.

APPROVE

Director

Servs.

Inv. QflL

Exec. AD-Adm._
Exec. AD-fnv.
Exec. AD-LES

Ident.

Inspection.
Intel!.

laboratory;
Legal Court.
Off. of Cong
* Public Affs:
Bee. Mgnl
Tech. Servs.
Training ,

i Qbt

>9 (J

SYNOPSIS AND DETAILS : On January 27, 1982, Assistant

Director Monroe, Criminal

Investigative Division (CID) , telephonically advised
Assistant Director Mintz, LCD, that the Director requested
an opinion on whether there is any law that requires any of
the Congressmen who were offered, and refused to accept,
bribes during ABSCAM to have reported such offers to the
or Department of Justice. Based upon the facts and law
outlined below, LCD concludes that the simple failure to
report the offer of a bribe violates no law.

On

with SA

January 29, 1 982. this matter was discussed

l CID, who provided the following

factual background. During the ABSCAM investigation, six
Congressmen were contacted by intermediaries and were
proffered money in return for the use of their influence to
obtain quick entry into the United States for certain
foreign nationals. None of the six accepted the bribe
offers, but the manner of the refusals varied slight
When interviewed, none of the Congressmen attempted
the fact that a bribe offer had been made. The Cong
involved are:

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1 - Mr.

\?LWM

1 - Mr .

1 - LRU

To FE 8 9 1982

22 MAR 2 4 1982

FBI/ DOJ

_ i

I

Memorandum to Director from Legal Counsel
RE : ABSCAM

1. Representative Edward J. Patten of New Jersey.
Rep. Patten was offered a bribe on one occasion, but Rep.
Patten made no response to the offer and neyer directly
indicated that he perceived that a bribe offer was being
made. Rep. Patten is no longer in Congress.

2.. Representative John P. Murtha: of Pennsylvania.
Rep. Murtha, a member of the Committee on Standards of
Official Conduct, was contacted on several occasions. In
response to the bribe offer, Rep. Murtha stated he would get
back in touch with the offeror. Rep. Murtha never
recontacted the offeror, and later testified for the Govern-
ment at the trial of Rep. Thompson^' and Rep. Murphy.

3. Senator Larry Pressler of South Dakota. Sen.
Pressler was contacted on one occasion. Sen. Pressler is
the only Congressman who flatly declined to accept the
offer.

4. Representative Peter W. Rodino of New Jersey.
Rep. Rodino himself was never personally contacted by FBI
representatives, but on several occa sions offers for Rep. b6

Rodino's assistance were made to his

and others. Rep. Rodino later disclaimed all

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knowledge of any offers being made, and at this point the
Government cannot prove the offers were communicated to him.

5. Representative Raphael Musto of Pennsylvania.
Rep. Musto was offered a bribe on one occasion and did not
accept.

6. Representative James Mattox of Texas. Rep.
Mattox did not accept the offer and later testified as a
defense character witness at the trial of Reps. Thompson and
Murphy. Rep. Mattox testified that he knew he had been
offered a bribe.

A review of applicable statutes and regulations
reveals that none of them require the offeree of a bribe to
take any steps toward reporting the offer. Title 18, United
States Code (U.S.C.), Section 201, the general bribery
statute, and Section 203, the section covering compensation

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Memorandum to Director from Legal Counsel
RE : ABSCAM

to Members of Congress, are silent on any such duty. Both
sections target the transfer or agreement to transfer
something of value. The Ethics in Government Act of 1978,
Pub. L. No. 95-521, 92 Stat. 1824, imposes a duty to report
certain financial activities, but its focus is upon income
which is actually realized. In any event, its reporting
requirements are not directed toward reporting to a law
enforcement agency. Similarly, the rules of ethics for both
the House of Representatives and the Senate only prohibit
the recei of unauthorized income and impose no duty to
report improper offers. Rules of the House of
Representatives, Sections 939 and 940, H.R. Doc. No. 95-403,
95th Cong., 2d Sess. 631-652 (1978); Senate. Manual , Standing
Rules of the Senate, Sections 42, 43, and 45, S. Doc. No.
95-1, 95th Cong., 1st Sess. 68-93, 96-101, 1(1977).

As a general rule, persons are not required to
report offenses they may know about, and mere failure to
notify an officer is no crime. R. Perkins, Criminal Law 517
(2d ed. 1969). Punishment under modern criminal law for
mere nondisclosure of knowledge of a crime is considered to
be wholly inconsistent with American law and procedure.

Id . , 516. A rule to the contrary would allow law
enforcement to target and prosecute individuals almost
regardless of what action they took. If a Congressman
accepted a bribe offered by an undercover officer, then he
could be prosecuted for bribery. If, however, he did not
accept it, a contrary rule would allow prosecution if he
took no action at all. Apparently only one jurisdiction has
made it a criminal offense to fail to report an offer of a
bribe. See , Perkins, supra , 480. The federal Misprison of
Felony statute, Title 18, U.S.C., Section 4, comes closest
to the facts at hand here, but still does not apply. That
section requires not only failure to disclose knowledge of a
federal felony, but also some affirmative act of concealment
beyond mere failure to report the felony. U.S. v. Johnson ,
546 F . 2d 1225 (5th Cir. 1977); U.S. v. Daddano , 432 F.2d
1119, 1124 (7th Cir. 1970), cert, denied , 402 U.S. 905, 91
S.Ct. 1366, 28 L.Ed. 2d 645 (1971). Under the facts in the
above-described situations, no affirmative act of
concealment is present, and therefore one element of the
offense is lacking.

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